TB4-04168

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB4-04168 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 18, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bolanle Olusina Ogunleye Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, (the Appellant), claims to be a citizen of Nigeria and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee or a person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is at risk of persecution in Nigeria because he is a gay man. The Appellant alleges he fears his family, the community at large and the Nigerian police. The Appellant alleges he was involved in same-sex relationships with men in Nigeria. [4] In XXXX 2013, the Appellant travelled to Canada to study at a XXXX XXXXn XXXX, British Columbia. The Appellant suffered a XXXX XXXX which resulted in him being hospitalized under a certificate of XXXX XXXX. The Appellant was later discharged and travelled to Toronto where he had extended family. The Appellant made an inland claim for protection on January 15, 2014. [5] The Appellant's application for refugee protection was heard on March 14, 2014. In a decision of April 25, 2014, the RPD rejected the Appellant's claim finding that the Appellant's allegations are not credible. [6] The Appellant submits that the RPD "erred [in its credibility findings] by erroneously placed little or no weight on all the third party documentary evidence adduce by the appellant in support of his claim."1 [7] In particular, the Appellant submits that: * The RPD erred in its adverse credibility findings; and, * Whether the Appellant's responses during the hearing reasonably indicate a significant health collapse - should the RPD have appointed a designated representative, and * Whether the RPD's assessment of the third party evidence adduced by the Appellant was unreasonable. ROLE OF THE RAD [8] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision The Appellant was invited to make submissions regarding the cases of Eng and Alvarez. However, the RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: * [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. * [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] The Appellant has tendered the following proposed new evidence in support of his appeal. * Affidavit of XXXX XXXX dated July 21, 2014;3 and, * Report from XXXX XXXX XXXX XXXX, Ph.D, C.Psch dated May 29, 2014.4 [12] The RAD finds that, although the documents were produced following the rejection of the claim, they are not significantly different from the evidence that was tendered at the RPD hearing. [13] In considering the statutory provisions in Section 110(4), the RAD considered the following. * First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.5 * The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.6 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. * It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. * If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.7 * Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,8 or that it proves a fact that was unknown to him at the time of the hearing?9 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. * Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.10 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [14] In the case at hand, the proposed new evidence fails to meet the requirements of section 110(4) in that the evidence is not capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.11 Report from XXXX XXXX XXXX XXXX, Ph.D, C.Psch., dated May 29, 2014, the Appellant argues, was not reasonably available because it only became apparent after review of the transcript that there were issues. The RAD finds this could have been reasonably available prior to rejection, and not submitted after the RPD rejection to explain the credibility deficiencies. The Federal Courts have said in the past that Psychological Reports are not a cure all for credibility deficiencies. As stated in Rokni,12 a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony". The court reiterated its position in Danailov,13 with respect to the assessment of a physician's evidence and the question of the assessment of credibility, it was stated "that opinion evidence in only as valid as the truth of the facts on which it is based". The RAD finds that the proposed new evidence does not meet the test of new evidence and, as such, will not be accepted as new evidence in this appeal. Application for an Oral Hearing [15] The Appellant does not request an oral hearing before the RAD in regards to the new evidence submitted. [16] The RAD has not admitted any new evidence in this appeal, and, as such, the RAD cannot hold an oral hearing in this appeal pursuant to section 110 (6) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [17] The Appellant submits that the RPD, in the Appellant's record, page 106, paragraph 7, impugned the credibility of the Appellant because of his inconsistencies in his testimony, specifically, his identity and inconsistencies in his evidence regarding his accounts of his homosexual relationships. The Appellant submits that the RPD erroneously omitted to recognize the significant mental health collapse by him during the questioning, which impaired his ability to testify on his own behalf. [18] The RAD is not persuaded by the Appellant's argument. The RAD notes that the record reflects that the RPD's adverse credibility findings were based on the contradictions between his testimony and the documentation he submitted in regards to his identity, which included letters of support from various organizations. The Appellant provided a certified transcript of the hearing, and the RAD had an opportunity to review the transcript along with the audio recording of the hearing. The RAD, after assessing the evidence in this area, arrived at the same conclusion that the RPD did in its findings. The RAD did not note any issues in regards to the Appellant alleges in his argument. However, the RPD did have the advantage of having the Appellant before it. The RAD will respect and recognize the credibility findings of the RPD in this area of the evidence. [19] The RAD notes that, on page 4 of the transcript, starting at line 6, there is an exchange between the panel and counsel at a pre-hearing conference.14 It is abundantly clear that the RPD brought the concern about the Appellant to counsel regarding the use of Designated Representative (DR), however the Appellant's counsel indicated that there was no reason for one, and as such the matter was not brought up. In assessing the evidence before it, the RAD notes that the RPD did not appoint a DR as a result of its pre-hearing conference with the Appellant's counsel. It appears that the RPD accepted that there was no need to appoint a DR. Further, it accepted that the Appellant appreciated and understood the nature of the proceedings. The RAD further notes that the RPD member, when making its assessment on the question of the necessity a DR, appears to have taken into account its interaction with the Appellant on the understanding and the nature of the proceedings. [20] A review of the audio hearing, the RAD noted that there does not appear to be any impediments by the Appellant in his interaction with the RPD panel or his own counsel. The RAD notes that the Appellant was vague in answering some questions, but there is nothing on the record by counsel or the RPD panel in regard to any medical condition impeding the hearing. The RAD also reviewed the entire record and did not find any correspondence requesting special accommodations for the Appellant or a request for a DR or to have the Appellant declared a vulnerable person. The RAD further notes that, at the onset of the hearing, the RPD was very alert to a possible medical condition, especially in regards to the medication which was being used by the Appellant, and if it would affect his testimony.15 The RAD finds the Appellant's argument fails as it is not supported by the evidence before the RAD. [21] The RPD found numerous inconsistencies in the Appellant's testimony along with omissions from his Basis of Claim form (BoC). For example, the RPD asked the Appellant about his latest relationship with a same-sex partner. The Appellant offered a very vague answer and was not able to provide such simple information as to the month and year he met his latest same- sex partner. Another example, when the RPD asked about his relationships with same-sex partners, the RAD notes once again that the Appellant was extremely vague, not remembering when and where he met his future partners, other than to say in a restaurant. The Appellant could not remember when he had his first sexual encounter. His first answer was very confusing; he testified that he was 16 years of age in University and later changed it to him being 19 years of age. [22] The RAD finds that there is evidence in the record which supports the RPD's adverse credibility findings. The RAD finds that the Appellant's testimony was inconsistent with his narrative and that this inconsistency undermines the credibility of his allegations. Letters of Support [23] In reviewing the RPD's reasons, the RAD finds that the RPD does make some clear findings on the evidence that the Appellant presented in regards to associations and organizations in Canada relating to the GGBTI communities. The RPD does provide in its reasons why it placed little to no weight on these documents. The RAD notes and concurs with the findings of the RPD in regards to the inconsistencies which it found in the letters. The Appellant did not provide any evidence of these homophobic experiences in his testimony, thus contradicting his own evidence which he presented in support of his claim. The RAD, in assessing the evidence before it in regards to this area of the evidence, clearly noted that there is no evidence before it to establish that any of the organizations or associations requires that the Appellant to confirm his sexual orientation, with the exception of one of the letters which merely indicates that the Appellant had discussed his sexual orientation. However, there are no basic details regarding this, and the letter does not identify the Appellant's sexual orientation, only that it was discussed. [24] The RPD made a clear credibility finding on this evidence. The RAD, in assessing the evidence before it, arrived at the same conclusion as the RPD did in its finding. [25] The RPD gave little weight to the Appellant's other personal documents finding that they did not provide persuasive evidence of the Appellant's alleged sexual orientation. The Appellant submits that the document clearly speaks to his sexual orientation and that the RPD ignored the evidence. [26] The RAD finds that the RPD conducted a fulsome analysis of these documents and appropriately found that the RPD could afford them little weight. The RPD notes that none of the documents indicate that the Appellant is bisexual. The RPD further noted that none of the organizations are able to provide reliable evidence of his sexual orientation. The RAD notes that the contents of the documents, which support the allegations of the Appellant, are based upon his account of that alleged persecution and not independent knowledge. The RAD finds that the RPD's finding in this regard was based upon the evidence and was supported by sound reasoning. [27] The RAD has found that the RPD fairly and appropriately assessed the probative value of the evidence. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations which are supportable. SUMMARY AND DETERMINATION [28] The RAD reviewed the evidence on the record and, after assessing all the evidence in its entirety, concurs with the RPD findings and finds that there is sufficient evidence to find that the Appellant does not face a well-founded fear of persecution, or a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Nigeria. CONCLUSION [29] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho November 18, 2014 Date 1 Appellant's Record, Memorandum, page 107 paragraphs 13 -15 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Appellant's Record, page 09-10 4 Appellant's Record, pages 12-14 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 13.3(a). 6 Raza, para. 16. 7 Raza, para. 13.5(b) 8 Raza, para. 13.5(a) 9 Raza, para. 13.3(b) 10 Raza, para. 13.5(a) 11 Raza, para. 13.3(a). 12 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995, at 10-11. 13 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. t-273-93), Reed, October 6, 1993, at 2 14 Appellant's record (transcript) page 45 lines 22 -55, page 46, lines 02 to 51, page 47 line 01 - 33 15 Appellant's record, page 3, Reasons for Decision paragraph 4 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04168